Examination of Witnesses (Questions 20-39)
RT HON
PETER HAIN
MP AND MR
KIM DARROCH
CMG
TUESDAY 1 APRIL 2003
20. But you are confident that, at the end of
the day, what is produced will be in our national interest?
(Mr Hain) Yes, I am; for the very simple reason that
if it is so fundamentally against our national interest then we
will not agree to it, it is as simple as that.
Mr Olner
21. Secretary of State, it is very difficult
for the 16 to come to a common view on what the constitution should
be; has there been any discussion with those states which are
seeking accession to the European Union, have they had an input
into the draft constitution?
(Mr Hain) As you will know, the new member countries,
not just the ten that are coming in next year to add to our 15,
making 25, but the two others, Bulgaria and Romania, that are
in the accession process already and will come in in some future
years, and Turkey, the additional country, making 28 countries
in there, I think that our discussions with a broad range of countries,
both existing Member States and new Members States, put us right
at the centre of gravity of the Convention. And I have been very
struck about how that is. There are one or two issues where we
are in a smaller minority, but we are not alone, and there are
other issues where we are in the great majority, but, most of
all, we are right in the middle, in the centre of gravity, which
is where I think a leading European power, such as Britain is,
should be.
22. I am not going to put words in your mouth,
so that is Old Europe versus New Europe?
(Mr Hain) Well it is a little more complicated than
that. A lot of the new member countries share our concerns about
the nation states being the foundation of the European Union,
not least because they themselves have enjoyed perhaps only 12,
13 years of freedom from being controlled from Moscow. On the
other hand, a lot of the existing Member StatesSweden and
Denmark, and actually Francein the institutional architecture
are very similar to us, as is Spain, as is Italy, in terms of
the nation states being the foundation, rather than everything
being communitised and there is some kind of federal superstate
being erected, which perhaps is closer to the Benelux position,
and maybe Germany's. So I think it is not just New and Old Europe,
whatever that means, I take it to meanno, I will not try
to define it.
Mr Maples
23. Secretary of State, I think that the big
issue with this constitution, for a lot of us, is, is it some
clear codifying of the existing treaties into a more sensible
and comprehensive reform, or is it actually a constitution for
a United States of Europe and creating a single European state?
And, for me, there are four pretty crucial tests of that, and
I wonder if I can ask you the Government's views on each of them.
The first, and I think perhaps the most difficult, is the incorporation
of the Charter of Fundamental Rights. It seems to me, it is not
like the United States' Bill of Rights, so a series of legal rights,
but actually it is a list of mainly political aspirations; if
it were included in the Treaty, as is proposed in the current
draft Articles, presumably it would become justiciable in the
European Court. I know that the Government resisted this for quite
a time, but now seems to be arguing that by the wording of parallel
clauses one can perhaps constrain it. I wonder if you could take
us through what is the Government's position on including the
Charter of Fundamental Rights?
(Mr Hain) If we go back to Nice, in 1999, we were
quite content for the Charter as a political declaration of admirable
principles. The issue that concerned us is precisely the one that
you have focused on, quite understandably, would it be justiciable
or not; and we took the view that, as it had been drafted then,
if simply incorporated into the treaty, as was proposed by its
most fervent advocates, it would have been justiciable, and therefore
it could have overturned our domestic law, and we were not having
that. Where we have got to now, in the Convention, mainly as a
result of really sterling work done by Baroness Scotland, my alternate
in the Convention, who has done a really, really excellent job,
we have managed to secure agreement, with the support of the Justice
and Home Affairs Commissioner, Antonio Vitorino, of strong horizontal
clauses in the Charter that prevent it, as it were, coming down
into our domestic law, to stop competences being extended, and
therefore prevent it being justiciable. That was where we were
in a consensus position in the Working Group and in the Convention
plenary, which endorsed that Working Group. The way it has come
out so far in the draft constitution, the way the Article was
drafted, it fudges that rather, in a way that is not acceptable
to us. And so what we have to have, even to be prepared to consider
whether we would support the Charter being incorporated in some
fashion, is that it stands not embedded in the first part of the
treaty but perhaps as a protocol, with a read-across from the
main treaty which makes it absolutely clear that the horizontal
Articles stop precisely that justiciable impact that we would
not accept. So, just to summarise, we are in a position, we are
seeking to negotiate a change from where it is in the draft, and,
frankly, it is such an important principle for us that we will
not accept it being incorporated in some way unless that copper-bottom
guarantee is given.
24. So it is a non-negotiable point for the
Government that the Charter of Fundamental Rights should not become
directly justiciable in the European Court of Justice, as a result
of this treaty?
(Mr Hain) The point is this, that what you have to
do is stop, for example, our employment laws being overturned,
or somebody who feels they are not getting hospital treatment
quickly enough taking their local trust to court under this provision,
and so on and so forth, precisely the things that concern you
and equally concern us. So if we can get the commentary properly
drafted alongside the Charter, and if the horizontal Articles
are as we want them to be, and if we can position it in the whole
structure in a way that we want, then we are willing to look at
it, but unless all of those ducks come into a row, no, we are
not.
25. Can I take you through, just quickly, my
other points. The Common Foreign and Security Defence Policies:
it seems to me crucial, if this is to be not a constitution for
a United States of Europe, that those policies should remain (a)
inter-governmental and (b) subject to a veto. What is the position
of the Government on those two questions?
(Mr Hain) Yes, they should remain inter-governmental,
and subject to unanimity, save for those areas which are already,
in terms of implementing decisions, and so forth, subject to Qualified
Majority Voting.
26. What would be the Government's view about
collapsing the pillar structure so that the Commission had a role
in foreign and defence and security policy?
(Mr Hain) Obviously, the Commission has a role already,
in that the functions carried out by Chris Patten, for example,
on association agreements and aid and development, and the other
foreign policy issues around it, so it has a role already; but,
no, as far as we are concerned, CFSP is a matter for Governments
and will remain a matter for Governments.
27. I think my next two questions are capable
of very quick answers. One is that it seems to me that in the
treaty, again to reinforce the position that this is not creating
a single European state, there should be a presumption in favour
of subsidiarity, which was not in the Charter to good effect.
I wonder if the Government would agree with that?
(Mr Hain) Yes, and, returning to the question I was
asked earlier by Fabian, we have had a very important advance
already, which is pretty well secured, subject to how finally
it turns out, in the final draft, that national parliaments, for
the first time ever, will be given rights, through an early warning
mechanism, to declare whether they think that a new proposal for
legislation, or some other initiative, infringes the principle
of subsidiarity. So that is an important advance.
28. Yes, but it requires an awful lot of national
governments to agree, to trigger the procedure, as it is outlined
at the moment, and my point was, if there were a presumption in
favour of subsidiarity, you would not get what you have got in,
whether it is Maastricht or Amsterdam, I forget, that remains
a provision of that subsidiarity, but it is never honoured because
it does not have any teeth in it. If the Court had to interpret
the Union's powers in the light of a presumption of subsidiarity,
it seems to me that that would make that question much easier
to deal with?
(Mr Hain) I can see where you are coming from, but
there are lots of things that we want Europe to do, we want Europe
to improve our security against terrorism, or human trafficking,
or international crime; we have got to be very careful that, as
it were, we do not modify the situation that stops Europe acting.
What this procedure is designed to do is put national parliaments
in pole position, right before the Commission can proceed, to
be able to have a right to say `no', this should be done at a
national state level and not a European level, and I think that
is very important. And an equally important consequence of it
will be, in my view, that the Commission, and the Council and
the Parliament, because those two institutions often are responsible
for making subsidiarity and proportionality questions worse, that
for the Commission, initially, it will be a deterrent factor,
they will be thinking to themselves, "National parliaments
are going to take a view on this before we can get to first base,"
and therefore they will be extra vigilant about subsidiarity and
proportionality.
29. One of the differences between the constitutions
of federal states, like the United States, and the constitutions
of international organisations, like, say, the WTO or Council
of Europe, is an explicit right for a Member State to leave; and
I wonder if you would favour that? I think that, if there were
an explicit, as opposed to an implied, right in the treaty to
leave, and I know that, theoretically, we can repeal the European
Communities Act, but if there were an explicit right for Member
States to leave then I think that would allay the fears of a great
many people who fear that this is a constitution for a single
European state. I wonder what is the Government's position on
that?
(Mr Hain) We are quite relaxed, quite happy, about
an exit clause, as it were, and for it to be defined as such.
But can I say just one other thing. There is not a cat in hell's
chance of a federal superstate being agreed by this Convention;
it is not just a question of we will not agree it, Spain will
not agree it, France will not agree it, Italy will not agree it,
Sweden will not agree it, Poland will not agree it, and that is
just for starters. So, whatever the ambitions of some European
Parliamentarians, and maybe some members of the Commission, and
maybe some of the smaller existing Member States, there is no
chance of that happening at all.
30. We always hear that, and if the draft Articles
which are coming out of the Convention are put into the constitution
then I think what you will have is much closer to what I fear
than what you say is going to be acceptable?
(Mr Hain) No, I do not agree, and I think when you
see the final version you will be much reassured.
Mr Maples: I hope so.
Sir John Stanley
31. Secretary of State, could I take you back
to what the Government said in its White Paper prior to the previous
Inter-Governmental Conference, the White Paper that was published
in February 2000, entitled "The British Approach to the European
Union Inter-Governmental Conference 2000[1]",
on the issue of unanimity. The Government said this: "Clearly,
some areas, such as treaty change and accession, will have to
remain subject to unanimous agreement, and the Government has
also made clear that we shall insist on retaining unanimity for
other key areas of national interest, such as treaty change, taxation,
border controls, social security, defence and own resources, the
EU's revenue-raising mechanism." Can you tell the Committee
whether that remains the Government's position?
(Mr Hain) Yes.
Andrew Mackinlay
32. I realise that one of the great strengths
of the European Union is that it is a ratchet which almost guarantees
enduring democracy; but one can foresee a situation, with an enlarged
community, a decade down the road, in one of the countries admitted,
such domestic strife that there could be, for instance, a coup
d'état. What mechanism is there to get rid of a country,
expel a country, suspend a country, where it does not comply with
the Copenhagen criteria?
(Mr Hain) I might call on the help of Kim, in this,
but to accede, let alone become a permanent member of the European
Union, you have to maintain, you have to abide by the Copenhagen
criteria.
33. Well, that is democracy, yes, I understand
that.
(Mr Hain) What are the areas in which you can suspend
them; perhaps you can help me on that, Kim.
(Mr Darroch) I cannot quote to you the precise text.
There are provisions already which say that if a Government departs
from the basic principles, European values, that all in the European
Union should share, then there is some sort of process which requires
at least consultation amongst the other Governments about the
next step. And you will recall there was a decision in relation
to Austria, two or three years back, when the Freedom Party became
a part of the Austrian Government, under which such measures were
taken against Austria. So there are procedures there; they are
being looked at as part of the Convention process, so they may
get adapted in the treaty text that is put forward to the IGC.
It is not clear how the others will mark it.
34. No; I am very grateful, and I do not mean
this disrespectfully, but, in a sense, you are struggling, because
clearly this has not been looked at, and I put it to you it has
to be looked at with some vigour. The Austrian example is a bogus
one. As reprehensible as I might have thought the Government elected
in Austria, it was elected by parliamentary procedure.
(Mr Hain) And your point is, a coup, or something
like that.
35. Yes. And that, 10 years down the road, I
put it to you, it is not inconceivable; there is one applicant
country which has a relatively recent record of military rule
and has a very strong military, admittedly it is not in the first
tranche of accession. But we have the difficult issue of Cyprus,
and also there could be other countries where things have gone
extraordinarily badly, and it does seem to me you need to build
in a mechanism, not where there is "consultation" but
where there is a final sanction of suspension in pure terms, not
a formulation or expulsion. Because the other political institutions
around the world, because we are not building a United States
of America, but let me use that in contrast, demonstrably the
federal government can move in, if you had a state which was not
complying with democratic norms it could not endure; but precisely
we are not vesting that power in the Union.
(Mr Darroch) I may now have found the relevant bit
in the existing Treaty, which is Article 7. Do you want me to
read it out?
36. I am genuinely interested in this, you know,
it is probably prophetic words.
(Mr Darroch) It is quite a lot, but I will paraphrase
it.
37. Paraphrase it if you like.
(Mr Darroch) If a proposal by a third of the Member
States or by the Commission and with the assent of the European
Parliament, the Council, Heads of Government level, the European
Council, decides that there exists a serious and persistent breach
by a Member State of the basic principles of the European Union,
then the Council, acting by a Qualified Majority, may decide to
suspend certain of the rights deriving from the Treaty in relation
to that Member State, including the voting rights, and in doing
so the Council should take into account the possible consequences
of such a suspension of rights on the rights and obligations of
the citizens of that state. So there is a provision in there already,
that is being looked at.
38. Yes, but it is not, is it? I listened very
carefully to what you said. They are sanctions, it is a withdrawal
or suspension of rights, not putting them outside the club?
(Mr Hain) I think that Andrew is raising a really
important point, and I will give him an assurance, Chairman, that
this is something that we are not simply going to skate over,
that is an important principle, as Europe enlarges, which I think
is your point, this is an issue that must be to the forefront
of not just our minds but the mechanisms by which the EU operates.
Chairman: I think Mr Mackinlay's point is clear,
there are more fragile countries likely to be within an enlarged
Europe, there should be a provision for suspension, and we want
to know where it is. Perhaps you could write to us with not only
that but with what discussions there have been within the Convention?
Andrew Mackinlay
39. I am content with what the Minister has
said.
(Mr Hain) I will be happy to do so[2].
You will appreciate that this is being done bit by bit and we
have not yet really paid a lot of attention to that.
Andrew Mackinlay: Chairman, I know we are concerned
primarily with these Working Groups 7 and 8, but is it competent
for us just to ask about the parliamentary oversight; what is
our remit this afternoon?
Chairman: Yes, we can deal with it.
1 IGC: Reform for Enlargement, CM 4595 Back
2
Ev 10. Back
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